Ronald Benson v. Lafarge Canada Inc. and Ken Cartmel, 2015 HRTO 1195

Human Rights Tribunal of Ontario

Between:

Ronald Benson Applicant

-and-

Lafarge Canada Inc. and Ken Cartmel Respondents

-and-

Teamsters Local Union No. 879 Intervenor

Interim Decision

Adjudicator: Jo-Anne Pickel Date: September 10, 2015 Citation: 2015 HRTO 1195 Indexed as: Benson v. Lafarge Canada Inc.

Written Submissions

Ronald Benson, Applicant Christine Lundy, Representative

Lafarge Canada Inc. and Ken Cartmel, Respondents David Francis, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend his Application and his request for the production of documents.

2In his Application, the applicant alleged that the respondents reprised against him and discriminated against him because of family status and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was self-represented at the time he filed his Application. The applicant alleged that the respondents discriminated against him by failing to provide reasonable accommodations for his child care responsibilities and for terminating his employment.

3The respondents filed a Response in which they denied the allegations in the Application.

4On or about May 27, 2015, the applicant retained a paralegal representative. His representative filed a Reply on his behalf June 16, 2015. The parties participated in a mediation on July 9, 2015 that was unsuccessful.

5By Request for Order During Proceedings (“RFOP”) dated July 30, 2015, the applicant’s representative sought to amend the Application and seek production of certain documents.

6The hearing of this Application is scheduled to take place on January 25-26, 2016. The deadline for the disclosure of the parties’ arguably relevant documents was September 1, 2015. On consent of the parties, the Tribunal extended this deadline to September 11, 2015.

Request to Amend Application

7The applicant’s original Application alleged discrimination because of family status, marital status and reprisal. At Question 8 which asks for a description of events that the applicant believed were discriminatory, he answered “see attached 1a, b, and c”. The attached sheet contains a section “a” which alleges that the respondents refused the applicant accommodations for his child care responsibilities. Section “b” states that the applicant obtained a doctor’s note recommending that he take two weeks off from work due to alleged mental distress caused by the respondents’ alleged failure to accommodate his family responsibilities. Section “c” alleges that the respondents terminated the applicant for not providing satisfactory evidence to support his medical leave even though the applicant allegedly delivered the doctor’s note and supporting documentation to the respondents. In response to Question A9 on the Application form, the applicant indicated that he experienced discrimination in scheduling, in being fired, in comments, displays, jokes, harassment or a poisoned work environment, in being denied short term disability (“STD”) benefits and in being denied necessary accommodations.

8In his RFOP, the applicant sought to amend the Application “to provide greater clarity” with regard to the issues to be addressed by the Tribunal and “to explain in more detail the circumstances that led to the filing of his Application”.

9The applicant sought to add the ground of disability as a ground of alleged discrimination and to remove the ground of marital status and reprisal.

10He sought to amend Question 8 of the Application to add background information relating to his employment with the corporate respondent as well as information relating to his child care responsibilities. He sought to add information about when and how he allegedly advised the respondents of his child care responsibilities and of his request for scheduling changes due to his child care responsibilities. He also sought to add information relating to the medical note mentioned in his Application. Finally, he sought to add information relating to his request for STD benefits which is also mentioned in his Application.

11In addition, the applicant sought to amend Section 9 of the Application which asks applicants about the effects on them of the discrimination alleged in the Application. He also sought to amend the remedy he is seeking in the Application.

12The respondents opposed the applicant’s request to amend his Application on the basis that (a) some of the allegations and particulars are untimely as they occurred more than a year before the Application was filed and (b) the RFOP raises fresh allegations that are not substantially connected to the original Application.

Analysis

13In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

14Having considered these factors, I grant the applicant’s request to amend the Application. I do not agree with the respondents that the applicant is seeking to raise fresh untimely allegations that are not substantially connected to the original Application.

15Although the applicant did not raise the ground of disability in his original Application, it was clear from sections “b” and “c” of the sheet attached to his Application that he was alleging disability-related discrimination with respect to his termination and denial of STD benefits. I note that the respondent addressed the applicant’s medical note at paras. 18 and 19 of its Response and attached a copy to the Response. As a result, in my view, the addition of the ground of disability does not raise new facts distinct from the original narrative.

16I find that the information that the applicant is seeking to add to his Application simply fills out the context of his allegations and addresses allegations in the Response in regards to the applicant’s alleged failure to seek accommodations from the respondent. Some of this information was included in the Reply filed by the applicant’s representative. The information contained in the RFOP is not new information of which the respondents were not already aware. The information in the RFOP relates to the allegations contained in the Application regarding an alleged failure to accommodate the applicant’s child care responsibilities and the termination of his employment. Therefore, I see no prejudice to the respondents of granting the applicant’s request to amend his Application so long as the respondents are provided a right to amend their Response.

17With respect to the applicant’s request to amend the remedy sought, the Tribunal regularly grants such requests. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050. This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

18For the reasons set out above, I grant the applicant’s request to amend his Application.

Production Request

19In his RFOP, the applicant sought to amend his Application to list certain arguably relevant documents that are in the possession of the respondents, the intervenor and Great West Life. It appears that the applicant is intending to seek production of these documents. The appropriate way to do so would have been to file a formal production request. However, I will treat paragraphs 34-36 of the RFOP as a production request.

20The respondents have consented to the production of the documents listed in paragraph 34 of the RFOP. Although the applicant’s RFOP appears to have been delivered to the intervenor, the intervenor has not replied to it. The intervenor is directed to file a Response to the production request contained in paragraph 35 of the applicant’s RFOP within 7 days of this Interim Decision.

21In order to seek the production of documents from Great West Life, the applicant should contact Great West Life to request a copy of the documents he is seeking. If Great West Life refuses to provide the documents he is requesting, he must deliver a third party Request for Order During Proceedings to Great West Life. The Tribunal will provide appropriate orders to ensure production of any arguably relevant documents that Great West Life fails to produce.

Orders/Directions

22For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application is granted. The Application is amended to add paragraphs 8-32 of the Applicant’s July 30, 2015 RFOP.

b. If the respondents wish to amend their Response to address the amendments, they may do so within 21 days of the date of this Interim Decision. The applicant may file a Reply to any amendments made to the Response within 14 days of receiving the respondents’ amended Response.

c. The applicant’s request for the production of documents from the respondents is granted on consent.

d. In light of the amendments to the Application, the parties are granted until September 24, 2015 to make the disclosure of arguably relevant documents required under s. 16.1 of the Tribunal’s Rules of Procedure. The deadline for the parties’ disclosure under Rules 16.2 and 17 remains December 11, 2015.

e. The intervenor is directed to file a Response to the production request contained in para. 35 of the applicant’s RFOP within 7 days of the date of this Interim Decision.

23I am not seized.